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106th CONGRESS
2d Session
S. 3131
To amend title XVIII of the Social Security Act to ensure that the
Secretary of Health and Human Services provides appropriate guidance to
physicians and other health care providers that are attempting to
properly submit claims under the Medicare Program and to ensure that
the Secretary targets truly fraudulent activity for enforcement of
Medicare billing regulations, rather than inadvertent billing errors.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 28 (legislative day, September 22), 2000
Mr. Murkowski (for himself and Mr. Abraham) introduced the following
bill; which was read twice and referred to the Committee on Finance
_______________________________________________________________________
A BILL
To amend title XVIII of the Social Security Act to ensure that the
Secretary of Health and Human Services provides appropriate guidance to
physicians and other health care providers that are attempting to
properly submit claims under the Medicare Program and to ensure that
the Secretary targets truly fraudulent activity for enforcement of
Medicare billing regulations, rather than inadvertant billing errors.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Medicare Billing
and Education Act of 2000''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.
TITLE I--REGULATORY REFORM
Sec. 101. Prospective application of certain regulations.
Sec. 102. Requirements for judicial and regulatory challenges of
regulations.
Sec. 103. Prohibition of recovering past overpayments by certain means.
Sec. 104. Prohibition of recovering past overpayments if appeal
pending.
TITLE II--APPEALS PROCESS REFORMS
Sec. 201. Reform of post-payment audit process.
Sec. 202. Definitions relating to protections for physicians,
suppliers, and providers of services.
Sec. 203. Right to appeal on behalf of deceased beneficiaries.
TITLE III--EDUCATION COMPONENTS
Sec. 301. Designated funding levels for provider education.
Sec. 302. Advisory opinions.
TITLE IV--SUSTAINABLE GROWTH RATE REFORMS
Sec. 401. Inclusion of regulatory costs in the calculation of the
sustainable growth rate.
TITLE V--STUDIES AND REPORTS
Sec. 501. GAO audit and report on compliance with certain statutory
administrative procedure requirements.
Sec. 502. GAO study and report on provider participation.
Sec. 503. GAO audit of random sample audits.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Physicians, providers of services, and suppliers of
medical equipment and supplies that participate in the Medicare
Program under title XVIII of the Social Security Act must
contend with over 100,000 pages of complex Medicare
regulations, most of which are unknowable to the average health
care provider.
(2) Many physicians are choosing to discontinue
participation in the Medicare Program to avoid becoming the
target of an overzealous Government investigation regarding
compliance with the extensive regulations governing the
submission and payment of Medicare claims.
(3) Health Care Financing Administration contractors send
post-payment review letters to physicians that require the
physician to submit to additional substantial Government
interference with the practice of the physician in order to
preserve the physician's right to due process.
(4) When a Health Care Financing Administration contractor
sends a post-payment review letter to a physician, that
contractor often has no telephone or face-to-face communication
with the physician, provider of services, or supplier.
(5) The Health Care Financing Administration targets
billing errors as though health care providers have committed
fraudulent acts, but has not adequately educated physicians,
providers of services, and suppliers regarding Medicare billing
requirements.
(6) The Office of the Inspector General of the Department
of Health and Human Services found that 75 percent of surveyed
physicians had never received any educational materials from a
Health Care Financing Administration contractor concerning the
equipment and supply ordering process.
SEC. 3. DEFINITIONS.
In this Act:
(1) Applicable authority.--The term ``applicable
authority'' has the meaning given such term in section
1861(uu)(1) of the Social Security Act (as added by section
202).
(2) Carrier.--The term ``carrier'' means a carrier (as
defined in section 1842(f) of the Social Security Act (42
U.S.C. 1395u(f))) with a contract under title XVIII of such Act
to administer benefits under part B of such title.
(3) Extrapolation.--The term ``extrapolation'' has the
meaning given such term in section 1861(uu)(2) of the Social
Security Act (as added by section 202).
(4) Fiscal intermediary.--The term ``fiscal intermediary''
means a fiscal intermediary (as defined in section 1816(a) of
the Social Security Act (42 U.S.C. 1395h(a))) with an agreement
under section 1816 of such Act to administer benefits under
part A or B of such title.
(5) Health care provider.--The term ``health care
provider'' has the meaning given the term ``eligible provider''
in section 1897(a)(2) of the Social Security Act (as added by
section 301).
(6) Medicare program.--The term ``Medicare Program'' means
the health benefits program under title XVIII of the Social
Security Act (42 U.S.C. 1395 et seq.).
(7) Prepayment review.--The term ``prepayment review'' has
the meaning given such term in section 1861(uu)(3) of the
Social Security Act (as added by section 202).
(8) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
TITLE I--REGULATORY REFORM
SEC. 101. PROSPECTIVE APPLICATION OF CERTAIN REGULATIONS.
Section 1871(a) of the Social Security Act (42 U.S.C. 1395hh(a)) is
amended by adding at the end the following new paragraph:
``(3) Any regulation described under paragraph (2) may not
take effect earlier than the date on which such regulation
becomes a final regulation. Any regulation described under such
paragraph that applies to an agency action, including any
agency determination, shall only apply as that regulation is in
effect at the time that agency action is taken.''.
SEC. 102. REQUIREMENTS FOR JUDICIAL AND REGULATORY CHALLENGES OF
REGULATIONS.
(a) Right To Challenge Constitutionality and Statutory Authority of
HCFA Regulations.--Section 1872 of the Social Security Act (42 U.S.C.
1395ii) is amended to read as follows:
``application of certain provisions of title ii
``Sec. 1872. The provisions of sections 206 and 216(j), and of
subsections (a), (d), (e), (h), (i), (j), (k), and (l) of section 205,
shall also apply with respect to this title to the same extent as they
are applicable with respect to title II, except that--
``(1) in applying such provisions with respect to this
title, any reference therein to the Commissioner of Social
Security or the Social Security Administration shall be
considered a reference to the Secretary or the Department of
Health and Human Services, respectively; and
``(2) section 205(h) shall not apply with respect to any
action brought against the Secretary under section 1331 or 1346
of title 28, United States Code, regardless of whether such
action is unrelated to a specific determination of the
Secretary, that challenges--
``(A) the constitutionality of substantive or
interpretive rules of general applicability issued by
the Secretary;
``(B) the Secretary's statutory authority to
promulgate such substantive or interpretive rules of
general applicability; or
``(C) a finding of good cause under subparagraph
(B) of the sentence following section 553(b)(3) of
title 5, United States Code, if used in the
promulgation of substantive or interpretive rules of
general applicability issued by the Secretary.''.
(b) Construction of Hearing Rights Relating to Determinations by
the Secretary Regarding Agreements With Providers of Services.--Section
1866(h) of the Social Security Act (42 U.S.C. 1395cc(h)) is amended by
adding at the end the following new paragraph:
``(3) For purposes of applying paragraph (1), an institution or
agency dissatisfied with a determination by the Secretary described in
such paragraph shall be entitled to a hearing thereon regardless of
whether--
``(A) such determination has been made by the Secretary or
by a State pursuant to an agreement entered into with the
Secretary under section 1864; or
``(B) the Secretary has imposed or may impose a remedy,
penalty, or other sanction on the institution or agency in
connection with such determination.''.
SEC. 103. PROHIBITION OF RECOVERING PAST OVERPAYMENTS BY CERTAIN MEANS.
(a) In General.--Except as provided in subsection (b) and
notwithstanding sections 1815(a), 1842(b), and 1861(v)(1)(A)(ii) of the
Social Security Act (42 U.S.C. 1395g(a), 1395u(a), and
1395x(v)(1)(A)(ii)), or any other provision of law, for purposes of
applying sections 1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii), 1870, and 1893
of such Act (42 U.S.C. 1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii), 1395gg,
and 1395ddd), the Secretary may not offset any future payment to a
health care provider to recoup a previously made overpayment, but
instead shall establish a repayment plan to recoup such an overpayment.
(b) Exception.--This section shall not apply to cases in which the
Secretary finds evidence of fraud or similar fault on the part of such
provider.
SEC. 104. PROHIBITION OF RECOVERING PAST OVERPAYMENTS IF APPEAL
PENDING.
(a) Notwithstanding any provision of law, for purposes of applying
sections 1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii), 1870, and 1893 of the
Social Security Act (42 U.S.C. 1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii),
1395gg, and 1395ddd), the Secretary may not take any action (or
authorize any other person, including any fiscal intermediary, carrier,
and contractor under section 1893 of such Act (42 U.S.C. 1395ddd)) to
recoup an overpayment during the period in which a health care provider
is appealing a determination that such an overpayment has been made or
the amount of the overpayment.
(b) Exception.--This section shall not apply to cases in which the
Secretary finds evidence of fraud or similar fault on the part of such
provider.
TITLE II--APPEALS PROCESS REFORMS
SEC. 201. REFORM OF POST-PAYMENT AUDIT PROCESS.
(a) Communications to Physicians.--Section 1842 of the Social
Security Act (42 U.S.C. 1395u) is amended by adding at the end the
following new subsection:
``(u)(1)(A) Except as provided in paragraph (2), in carrying out
its contract under subsection (b)(3), with respect to physicians'
services, the carrier shall provide for the recoupment of overpayments
in the manner described in the succeeding subparagraphs if--
``(i) the carrier or a contractor under section 1893 has
not requested any relevant record or file; and
``(ii) the case has not been referred to the Department of
Justice or the Office of Inspector General.
``(B)(i) During the 1-year period beginning on the date on which a
physician receives an overpayment, the physician may return the
overpayment to the carrier making such overpayment without any penalty.
``(ii) If a physician returns an overpayment under clause (i),
neither the carrier nor the contractor under section 1893 may begin an
investigation or target such physician based on any claim associated
with the amount the physician has repaid.
``(C) The carrier or a contractor under section 1893 may not recoup
or offset payment amounts based on extrapolation (as defined in section
1861(uu)(2)) if the physician has not been the subject of a post-
payment audit.
``(D) As part of any written consent settlement communication, the
carrier or a contractor under section 1893 shall clearly state that the
physician may submit additional information (including evidence other
than medical records) to dispute the overpayment amount without waiving
any administrative remedy or right to appeal the amount of the
overpayment.
``(E) As part of the administrative appeals process for any amount
in controversy, a physician may directly appeal any adverse
determination of the carrier or a contractor under section 1893 to an
administrative law judge.
``(F)(i) Each consent settlement communication from the carrier or
a contractor under section 1893 shall clearly state that prepayment
review (as defined in section 1861(uu)(3)) may be imposed where the
physician submits an actual or projected repayment to the carrier or a
contractor under section 1893. Any prepayment review shall cease if the
physician demonstrates to the carrier that the physician has properly
submitted clean claims (as defined in section 1816(c)(2)(B)(i)).
``(ii) Prepayment review may not be applied as a result of an
action under section 201(a), 301(b), or 302.
``(2) If a carrier or a contractor under section 1893 identifies
(before or during post-payment review activities) that a physician has
submitted a claim with a coding, documentation, or billing
inconsistency, before sending any written communication to such
physician, the carrier or a contractor under section 1893 shall contact
the physician by telephone or in person at the physician's place of
business during regular business hours and shall--
``(i) identify the billing anomaly;
``(ii) inform the physician of how to address the anomaly;
and
``(iii) describe the type of coding or documentation that
is required for the claim.''.
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